Fuller v Combined Property Renewal Pty Ltd t/as Kempsey Tourist Village

NCAT Appeal Panel|2018-10-22

Background

The two applications involve three premises occupied by the appellants at the Kempsey Tourist Village, being two caravans referred to as sites VE-35 and VE-36, and the "Manager's House".
Matter RT 18/17992 (the appellant's application) was the appellants' claim against the respondent. Their application was filed on 19 April 2018. The appellants sought ten orders pursuant to the provisions of the Residential Tenancies Act 2013 (NSW) (the RT Act).
This matter was listed for directions on 3 May 2018. On that occasion, the respondent was represented by Mr Mark Mitchell, a director of the respondent. The appellants narrowed the scope of the orders sought to two, namely: 1. an order limiting entry to the premises to the Manager's House under s 61(1) of the RT Act; and 2. an order under s 73(c) of the RT Act that the respondent provide the appellants with a key to site VE-36.
Directions were made for the case management of the appellants' application, including for the filing of evidence, and the matter was adjourned for hearing. The matter was subsequently listed for hearing on 28 June 2018.
Meanwhile, on 25 May 2018, the respondent filed application RT 18/25065 (the respondent's application) against the appellants. The respondent sought, among other orders, a declaration pursuant to s 11 of the RT Act that a 90 day notice to terminate dated 20 April 2018 was binding; and orders that the appellants pay rental arrears in respect of the Manager's House, site VE-35 and site VE-36, together with other ancillary orders.
We note that the notice of termination, which was stated to be issued "under the Residential Tenancies Act 2010", required the appellants to vacate VE-35, VE-36 and the Manager's House on or before 23 July 2018. The Notice was said to be issued pursuant to s 85 of the RT Act. In other words, notice of termination of the tenancies was given 90 days' in advance of the termination date, no other reason being required.

The commencement of hearing and appellants' objections to respondent's application proceeding

The hearing commenced as follows: Member: My name is Hausfeld. I'm sitting as NCAT today. For the sake of the record I'm dealing with RT 18/25065 and RT 18/17992 and as I understand we'll deal with both these matters together. O'Donnell: If I may Mr Hausfeld. We've looked at the lists this afternoon and this morning and this is the first notification that we've had of the counter claim. We've not received any paperwork and we have not been made aware in any way of a cross application. Ms Fuller says she has had a mail redirection put in place, she has evidence of that here and states that she has received no notification of the hearing or application. Member: Alright, I've got evidence that notice of hearing was sent to [XXXXfuller]@gmail.com, [XXXXgayle]@yahoo.com for that matter. So I'm going to proceed with both matters.
We pause here to observe that it is not clear what the Member was referring to when he stated that notice of the hearing had been sent to the email addresses of each of the two appellants. The only copy on the Tribunal file for the respondent's application of a notice of hearing for that application was addressed to the appellants at the Kempsey Tourist Village. We note that on the file for the appellants' application there is a copy of the notice of hearing for that matter sent to each of the appellants' at their respective email addresses. There was no such notice of hearing on the file for the respondent's application. Accordingly, we conclude that the Member erred in making that statement.
Mr O'Donnell then asked for a copy of the respondent's documents, including its application. The sound recording is a little indistinct, however Mr O'Donnell can be heard saying: We have no idea what he's asking for, absolutely no idea. Member: Okay let me get that sorted out, but before we do that, you're jumping the gun a little bit, because I want to know who's here.
Mr Mitchell, Ms Fuller and Mr O'Donnell then identified themselves. The Member allowed Mr O'Donnell to assist Ms Fuller as a McKenzie Friend, and indicated that, if he wanted to say something, he should "feel free" to do so.
After attending to a number of administrative matters (including amending the identity of the applicant in the respondent's application from Mark Mitchell to Combined Property Renewal Pty Ltd t/as Kempsey Tourist Village) the Member caused the Court officer to administer an oath to each of Mr Mitchell and Ms Fuller. The Member then said to Mr Mitchell: Did I understand correctly before that you handed Ms Fuller a copy of your application, and the attached documents.
It is not clear why the Member had that understanding, as nothing to that effect had been stated by Mr Mitchell. The sound recording continues: Mitchell: The documents that the Court asked me to hand to Ms Fuller and Mr Gayle by the 31st of May - Member: And you've handed it to her? Mitchell: I went to the post office, I put it in the registered mail and registered it and handed it to her outside the gate of her premises. Member: How come you went to the post office and registered it if you're doing it by hand? Mitchell: Because I was led to believe that it had to be a registered mail so that I had evidence of actually doing it. Member: You put it into the post office Mitchell: Yeah I got a registered envelope Member: Yeah. Mitchell: Cause it said I had to do it in person, so I covered both - Member: Yeah, okay alright. I record for the record, as I mentioned earlier, that I've got evidence of email traffic from the Registry to each of Mr Gayle and Ms Fuller so I am going to proceed to hear both matters together.
We note that this conclusion of the Tribunal is incorrect, for the reason we have described above; that is, there is no material on the file relating to the respondent's application (being "email traffic" or otherwise), to support it.
We note that, at the appeal hearing, Ms Fuller did not deny that she had been handed an envelope of documents by Mr Mitchell. However, she says, and we accept, that what she received were the respondent's documents in respect of its defence to the appellants' application, which did not include the respondent's application.
At this point Mr O'Donnell then stated: Pardon me, but the document that Mr Mitchell is referring to is correct, they were the documents that were ordered by the Tribunal, that is the evidence in response to the claim made by the original application [that is the appellant's application]. There is no documentation or application in regard to Mr Mitchell's -
The Member then interrupted Mr O'Donnell saying: Member: Well let me just clarify that. Mr Mitchell, you've got an application RT 18/25065. Correct? … And in that application, looks like, there's been the hand of a solicitor and you've got a statement attached to it. Have you given those documents to Ms Fuller or Mr Gayle? Mitchell: I believe that all the documentation is encased in that envelope. Member: That means, you're telling me that you put your application and your statement - Mitchell: My statement, but the only part that I don't recall that I don't recall putting in the envelope to her was the actual part that my solicitor filed with the Court because I was led to believe that when it comes to you the - Member: OK. OK, I understand. So we don't have Mr Mitchell giving it, we have it coming by email. Alright, I am going to proceed, Mr O'Donnell, so thank you. O'Donnell: I'm quite confident that there is still no documentation at all in regard to Mr Mitchell's application - Member: We'll get there! - O'Donnell: was in that - Member: We'll get there.
This portion of the sound recording of the hearing is directly relevant to Ground (1).

The approach taken by Member to the giving of evidence

At this point the Member then said: We'll get there somewhat slowly because what I want to do is ascertain what has been agreed. First, because it seems to me that a good deal of the history is agreed between the parties having read the papers on both sides.
The Member continued: I will begin running through what I understand is the background. For this bit if anybody thinks I've got it wrong, and it's a disputed issue, please say so as I am going. So, we've got two related matters that raise issues under the Residential Tenancies Act and separately under the Residential (Land Lease) Communities Act 2013. And I'm hearing both matters together with evidence in one being evidence in the other. With no intended disrespect and for ease of reference, particularly given the disparate terms used in the above 2 Acts, I refer to the Applicants in RT 18/17992 (the Respondents in RT 18/25065), that's Fuller and Gayle, as "the Occupants", and the Respondent in RT 18/17992 (or the Applicant in RT 18/25065) as "the Owner". The parties have each submitted documents and I imagine that they will give sworn evidence today. As I understand it the following's not contested: The Owner owns and operates a Residential Community and Caravan Park known as the Kempsey Tourist Village (which I call "KTV") in Kempsey. Prior to Aug 2017, the Occupants had a site agreement for van and annex on site VE-36 and that was an agreement under the R(LL)CA, that is the Residential (Land Lease) Communities Act 2013. This agreement was for $190/week plus power and water expenses. The Owner's previous managers were a couple who by August 2017 had respectively passed away and resigned. From about 30/8/2017, the Owner offered the management role to the Occupants with an agreement that they would vacate VE-36 and move into the Manager's 4 bedroom residence ("the Manager's House" as I call it), with rent being fixed at 420 a week. The Occupants agreed to have the move from VE-36 to the Manager's House completed by about 10th of September 2017.
We note that the Member was speaking quite quickly, and proceeding through this material at a fast pace.
At this point Ms Fuller spoke. The sound recording is indistinct, but it is clear that she disputed the last statement of the Member's as the Member continued: Alright, when do you say you had agreed to move out of VE-36? Ms Fuller: We officially started on 1st of September and actually we never had any kind of agreement for moving out and just left our storage. Member: All right, so I will record that the Owner says that the Occupants agreed to have moved out by that point however the Occupants claim say they never agreed to move out of VE-36. Concerning the Manager's House, there is no written residential tenancy agreement between the Owner and the Occupants. In about September 2017 the Owner representative returned to Melbourne trusting the KTV to the Occupants. The Occupants did move into the Manager's House at the planned time. The Occupants did not move out of VE-36. Now, the Occupants have not paid the occupation fee for VE-36 since 10 9 2017. Have I got that right?
At this point Ms Fuller attempted to say something, commencing her remarks (we think) with "Yes", but the Member then spoke over her continuing: At about the same time and initially without permission or knowledge of the Owner, the Occupants also began using VE-35 for storage of the Occupants' private goods. The Owner later agreed that the Occupants could store their goods in VE-35 for a fee of $50 a week.
Here again Ms Fuller made a remark which is hard to discern from the sound recording but may have been "Not correct". The Member continued: Alright, what do you say? Ms Fuller: There was never any agreement for any money to be paid for any storage fees at all. Member: That's all right, so the Owner says that it later agreed that the Occupants could store their goods in VE-35 for a fee of $50 a week.
At this point Ms Fuller began to speak. Again her speech on the sound recording is hard to hear, exacerbated on this occasion by some external noise either in the tribunal room or outside it. The Member then said: Member: Sorry, I can't hear what you're saying, you'll need to speak up. Ms Fuller: As we were residing in VE-26, 36 sorry, we had our excess storage in the one next door 35. There was never … when we moved into 36. . . . It was free when we moved into 36. Member: You'll need to re-express that, I don't understand what you are trying to tell me. Ms Fuller: In what you just said is that after we started working there, in September, that we moved our stuff into 35 as well, that was previously in there before we started working - Member: Okay, I'm not going to deal with the period before you started working there. Because that is not part of this case as I understand it. The Occupants say that there was never an agreement to pay anything for use of VE-35. Ms Fuller: Or 36. Member: No. Which bit of what I have read thus far is false, or in dispute? Ms Fuller: That there were any monies to be paid for 36 or 35. Member: Prior to August 2017, you had a site agreement covering VE-36 at 190 a week, did you not? Ms Fuller: Yes. Member: Well, that's all I mentioned. Ok. The parties agreed that from 8th of March 2018 the combined rent/fees for the Manager's House, VE-36 and VE-35 would be $300.There have been disagreements between the parties concerning access to that part of the Manager's House which forms the usual reception area and office for KTV.
We pause here to observe that the Member continued to (in his words) "rehearse" these (what appear to be) factual findings at a fast pace. We would understand if either of the parties had difficulties in understanding precisely what was occurring during the hearing and fully understanding what the Member was putting to them.
At this point, Mr Mitchell interjected to correct the Member's statement about the rent to be paid for the three properties. His point was that it was never agreed that the amount of rent was only $300. Ms Fuller contributed that the tenancy was terminated for VE-36 when she and Mr Gayle moved into the Manager's House. The Member then drew Mr Mitchell's attention to par [29] of his statement. The Member commenced to read it, and, mid-paragraph, indicated that he had misunderstood it. The Member then continued: From the 8th of the 3rd the combined rent/fees for the Manager's, er, so, well, um, so would be $300 plus, um, 190 -
Ms Fuller then said: there was never an agreement to pay the 190 after we vacated but the Member cut her off with: Thank you! I will reflect that as a disagreement.
The Member continued: So the parties, so I now understand, what the Owner says at least, so the Owner says, oh, right, all right, so 190 for VE-36 plus 50 for VE-35. What do the Occupants say was agreed if anything? Ms Fuller: There was no money agreed, it was just that we started work as at the 1st of September: Member: No! As of the 8th of March 2018 we're talking about. Ah, at that time was there any agreement to charge any rent?
Further contributions from Mr Mitchell and Ms Fuller ensued. Mr Mitchell made it clear that the $300 rent was only for the Manager's House, Ms Fuller that the $300 was the total for all three properties. The Member then stated: All right.. So let me pick up where I was. There have been disputes between the parties concerning access to that part of the Manager's House which forms the usual reception area and office for KTV. On 24 4 18, the Owner issued a 90-day Termination Notice pursuant to section 85 of the Residential Tenancy Act. The Notice purported to cover the Manager's House, VE-35 and VE-36 and gave 94 days' notice.
At this point, Mr Mitchell spoke to indicate that he had asked the appellants to vacate VE-35 and VE-36, to clean those properties and that he had sought advice from his lawyers. The Member said: "We'll get there", and continued: Now, in terms of VE-35, since September, Ms Fuller, how much has been paid by you or Mr Gayle for VE-35. Ms Fuller: None, and there was no agreement - Member: No, no, just tell me the dollars. I'm really just trying to get this sorted in terms of, what's been agreed. You agree with that Mr Mitchell? Mitchell: Zero dollars has been paid for VE-35. Member.: Now same question concerning VE-36. And since say 1 September 2017, how much has been paid for VE-36? Ms Fuller: Zero, and the tenancy was terminated by consent with the offer of the new home. Member: Since September 2017, the Occupants have paid nil for VE-36. Correct Mr Mitchell? … Now, in terms of the Manager's House, was the rent paid up to the 8th of March 2018? Is there any shortfall there? And I note that in your documents Mr Mitchell someone has sent me a obviously colour coded little table which I can't make any use of because it copied in black and white… I want to know whether the parties have got agreement about the rent up to the 8th of the 3rd 2018. Mr Mitchell: Well, on the 1st of March they were terminated - Member: Is there any rent outstanding in the period up to the 8th of March 2018? Mr Mitchell: No - Member: Thank you. So, the Occupants have paid all rent owing for the Manager's House prior to 8/3/2018. … The owner says rent at $300 per week has since 8th of March -
At this point Ms Fuller said something, possibly "that's incorrect". The Member cut her off, raising his voice and saying: "Ma'am, I will come to you as we go through it. It cannot possibly be incorrect I put to you that what I have just said is correct. The Owner says that rent at $300 per week since the 8th of March has been paid to, so three payments missing, when's it paid up to Sir?
Mr Mitchell spent some further time attempting to answer the Member's question, and the Member concluded: So we're paid up to the 13th of June, probably. We're not in a position to go running off and find more evidence. We dealing with the evidence as it is today. So the Owner says the rent at 300 a week has been paid up to 13/ 6 2018 - Mitchell: Potentially - Member But the Occupants say rent has been paid up to 27th [of June] or something.

Subsequent written reasons

We observe that, save for the interjection and discussions, these passages which the Member describes as "background" or "what has been agreed" and "rehearsed" by him, resemble very closely the following parts of the written reasons for decision: 7. Reasons for decision These related matters raise issues under the Residential Tenancies Act 2010 ("RTA") and separately under the Residential (Land Lease) Communities Act 2013 ("R(LL)CA"). I heard both matters together with evidence in one being evidence in the other. With no intended disrespect and for ease of reference, particularly given the disparate terms used in the above 2 Acts, I refer to the Applicants in RT 18/17992 (Respondents in RT 18/25065) as "the Occupants" and the Respondent in RT 18/17992 (Applicant in RT 18/25065) as "the Owner". The parties have each submitted documents and given sworn evidence. The following background facts are not contested: 1. The Owner owns and operates a Residential Community and Caravan Park known as the Kempsey Tourist Village ("KTV") in Kempsey. 2. Prior to Aug 2017, the Occupants had a site agreement for van & annex VE-36 under the R(LL)CA. This agreement was for $190/week plus power and water expenses. 3. The Owner's previous managers were a couple who by August 2017 had respectively passed away and resigned. 4. From about 30/8/2017, the Owner offered the management role to the Occupants with an agreement that they would vacate VE-36 and move into the manager's 4 bedroom residence ("the Manager's House"), with rent being fixed at $420/week. The Owner says that the Occupants agreed to have the move from VE-36 to the Manager's House completed by about 10/9/2017. However, the Occupants say they never agreed to move out of VE-36. 5. The Manager's House includes the reception area and office for KTV. 6. Concerning the Manager's House, there is no written residential tenancy agreement between the Owner and the Occupants. 7. In about Sep 2017, the Owner representative returned to Melbourne trusting the KTV to the Occupants. 8. The Occupants did move into the Manager's House at the planned time. 9. The Occupants did not move out of VE-36. The Occupants have not paid the occupation fee for VE-36 since 10/9/2017. 10. At about the same time and initially without permission or knowledge of the Owner, the Occupants also began using VE-35 for storage of the Occupants' private goods. The Owner says that it later agreed that the Occupants could store their goods in VE-35 for a fee of $50/week. The Occupants say that there was never an agreement to pay anything for use of VE-35. … 15. The Owner says that parties agreed that from 8/3/2018 the combined rent/fees for the Manager's House, VE-36 and VE-35 would be $300 (for the Manager's house) plus $190/week for VE-36 plus $50 for VE-35. The Occupants agree that there was an agreement to pay $300/week for all three properties. 16. There have been disputes between the parties concerning access to that part of the Manager's House which forms the usual reception area and office for KTV. 17. On 20/4/2018, the Owner issued a 90-day Termination Notice pursuant to s85 of the RTA. The Notice purported to cover the Manager's House, VE-35 & VE-36 and gave 94 days' notice. 18. Since Sep 2017, the Occupants have paid nil for VE-35. 19. Since Sep 2017, the Occupants have paid nil for VE-36. 20. The Occupants have paid all rent owing for the Manager's House prior to 8/3/2018. 21. The owner says rent at $300/week since 8/3/2018 has been paid up to 13/6/2018. BUT The Occupants say rent has been paid up to 27/6/2018? 22. The Occupants currently occupy the Manager's House, VE-36 & VE-35.
We note that the matters set out in pars [11] to [14] of the written reasons were not expressed by the Member during the hearing.
We observe that these "reasons" are, on the whole, factual findings. We say "on the whole", because, as can be observed, these are instances where the Member has set out the competing positions of each party, (for instance pars [4], [10] and [21], but no finding is made. It is apparent, from pauses during the hearing, that the Member was typing on his laptop computer, and from the way in which the Member repeated what he appeared to be typing, that the Member had prepared an outline of what he had understood were the agreed facts in advance of the hearing and was amending and supplementing that outline as the hearing progressed.

The amendment of the respondent's application

The Member then indicated that "That brings me to the applications". He then read on to the record the 10 orders sought by the appellants in their application. Mr O'Donnell explained that the appellants had previously narrowed the scope of the orders sought to those set out in par [20] above.
The Member then asked whether the appellants accepted that "the Notice of Termination" was valid. While not explained, this presumably was a reference to the Notice of Termination referred to in the respondent's application, which the appellants may not have seen. Ms Fuller indicated that there were several notices and asked which one the Member was referring to. This conversation then segued into a discussion about the tenancy agreements in respect to VE-35 and VE-36. Mr Mitchell indicated that these tenancy agreements terminated by consent when the appellants agreed to move into the Manager's House and to commence employment for the respondent. The Member interrupted this discussion saying: I'm still trying to sort out what the applications are. It's been an important part of the process to do that because I've now discovered there's only two of nine or something orders currently sought.
The Tribunal then moved to the respondent's application, and read on to the record the orders sought stating: By Application RT 18/25065 Mr Martin, the Owner seeks orders: under section 111 of the RTA declaring that the Termination Notice was given in accordance with the Act; under section 187(1)(c) that the Occupants pay unpaid rent of $300/week… for the manager's residence … from the 14th of June onwards, in essence, so two weeks; that the Occupants pay $50/week for VE-35 from 30th August to their ultimate vacation; that the Occupant pay $190/week for VE-36 from 30th August to ultimate vacation of that site; for an occupation fee under section 132 for goods left on premises after termination; under section 131 RTA authorising the removal or disposal of goods left at the premises.
At this point a discussion ensued, prompted by the Member, about the respondent amending its application so as to include an application pursuant to s 93 of the RT Act. That section provides: 93 Hardship to landlord (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the landlord would, in the special circumstances of the case, suffer undue hardship if the residential tenancy agreement were not terminated. (2) The Tribunal may, if it thinks fit, also order the landlord to pay compensation to the tenant for the tenant's loss of the tenancy. (3) The tenant must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been reasonably avoided by the tenant. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
The discussion was as follows: Member: Now Mr Mitchell, there are aspects of evidence suggesting that there are issues of hardship in terms of running the business with the Manager's House tied up. Have I understood that correctly? Mr Mitchell: Yes Member: Do you also wish to make an application for relief under the hardship provisions in section 93 of the Residential Tenancies Act? Mr Mitchell: Sir, I just want to do whatever has been put there by the legal team. Member: OK. So if there is a hardship application also available am I is it fair to say that you're putting your hand up for it? Mitchell: Well, I just want to sort this out and move forward - Member: Is that a yes or a no? Mitchell: If that what they've, if that what my legal team has put in the document I guess that's a yes - Member: It's what the evidence goes towards.
It is to be observed that the Member did not ask Ms Fuller what her attitude was to this amendment.
At this point, Mr O'Donnell asked if he could put a proposal to the Tribunal which would "certainly expediate this whole process". It was a proposal that the appellants would consent to termination of the tenancy of the Manager's House in seven days on condition that Ms Fuller be given access to VE-36 so that she could remove her goods. Mr O'Donnell said that Ms Fuller had been seeking access for some two months. At this point the sound recording records: Mitchell: Sir, may I make a comment. Member: It is not proving - Mr O'Donnell: No I'm not I'm just saying - Member: hang on - It's not helping. Mr O'Donnell there's only one brain in here that needs convincing and I'm afraid it's mine, and mine's working rather slowly because we have a muddle among the parties concerning the legislation that applies. That means that I'm applying Tribunal powers across a couple of different Acts where you've presented the case as though it was only one. And there have been nine applications, er, nine separate orders sought by your client up until -
It is not clear that, at this point, the appellants, whom the Member was addressing, had presented any case at all. All that had happened to that time was that the Member had put to the parties his proposed findings which he considered arose from his analysis of the documents. The exchange continued: O'Donnell: Up until previous hearing where leave was sought then to amend the application. Member: Well, I've not seen any amended application. O'Donnell: This is the difficulty that we have. We've not seen this application and we can't respond to the unknown, there's no conciliation in regards to this application Member: Mr O'Donnell - O'Donnell: Well, there hasn't been a conciliation - Member: You're not helping. O'Donnell: We don't even know what we're - Member: You're not helping. If you're not helping as a McKenzie Friend, I will ask you to be silent.
After this exchange, the Member then stated, as is recorded in the written reasons at par 24: The owner also makes an application for relief under s93 RTA based on hardship.
The Member continued: Let me now turn to each of the occupants' requested orders. What I'm proposing to do is to work through the orders one by one. I'll hear each of the parties on each of the orders and then come back. Are the parties content to proceed that way?" …
It is not possible to hear on the recording any response from the parties but it appears they gave some indication of acquiescence, as the Member said "OK" and then proceeded to consider in turn the orders requested by the appellants and then the orders requested by the respondent.
We observe that at this point the Member had not identified the evidence filed by the parties, in either application, and had not inquired whether or not either party wished to cross-examine the other's witnesses.
The Member then allowed Ms Fuller and Mr Mitchell to address the issues surrounding the appellants' application for orders limiting the respondent's access to the Manager's House. That part of the hearing went for approximately 35 minutes. In that time there was lengthy discussion of the practical issues which arose with the appellants occupying the Manager's House, part of which was utilised for the storage of linen and other items necessary for management of the tourist village.
After indicating that he would make an order limiting the respondent's entry to the premises, the Member addressed the appellants' request for keys to VE-35 and VE-36 and indicated he would make orders requiring the respondent to make keys available to the appellants.
The Member then turned to the respondent's requested orders, and concluded that the Termination Notice dated 20 April 2018 was given in accordance with the RT Act. He then turned to consider whether the tenancy should be terminated on grounds of hardship. The Member's consideration of this issue, commencing at approximately 1:35:08 was as follows: Member: Let me turn now to the issue of hardship. I'm satisfied from the Owner's evidence that the Owner is suffering hardship by virtue of the continuing tenancy over the Manager's House. In particular the Owner's business is being interfered with in terms of being properly meeting and dealing with guests in terms of the Occupant's interference with the business. Is there anything you want to say about that Ms Fuller? Fuller: Just there was an agreement for $300 per week [indistinct] pay rent weekly [indistinct] everything to ourselves. For parking, Mr Mitchell asked us to move our parking - Member: But - Fuller: rearrange car parking. We're not causing any hardship Member: Well I find otherwise. The mere having to move everything out of the Manager's Residence itself is hardship in my view. Ah, Fuller: We were living in that residence for 6 months - Member: Pursuant to s 93 of the Residential Tenancy Agreement I terminate the tenancy concerning the Manager's House from 5pm on Friday 29th of June.
We note that, as mentioned above, there was, in the course of the Member's consideration of the appellants' application for orders that the respondent not to access the Manager's House, some discussion of the practical issues surrounding the appellants' occupation of the property. Nevertheless, the only opportunity given to the appellants to deal specifically with the respondent's "application" for orders pursuant to s 93 is the exchange set out in the preceding passage.

Ground (1): denial of procedural fairness

In our view, the extracts from the sound recording which we have set out above are sufficient to demonstrate a clear denial of procedural fairness to the appellants.
The duty to accord procedural fairness, or natural justice, consists of two key rules:

the hearing rule, which requires a decision-maker to accord a person who may be adversely affected by a decision an opportunity to present his or her case;
the rule against bias, which requires a decision-maker not to have an interest in the matter to be decided and not to appear to bring a prejudiced mind to the matter.

In addition, s 38 of the Act prescribes the procedure of the Tribunal generally. Sub-sections (5) and (6) embody aspects of procedural fairness. Those sub-sections provide: (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
The precise requirements of procedural fairness will depend on the circumstances of each case.
In our view, the appellants were clearly denied procedural fairness in relation to the respondent's application as:

the appellants had no notice that the respondent's application was listed that day;
the respondent's application was listed for conciliation and hearing, a point which Mr O'Donnell emphasised during the hearing;
the appellants had never received a copy of the respondent's application; and
the Tribunal proceeded to hear the respondent's application over their repeated protests.

In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 the Appeal Panel stated at [77] that justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case. The Appeal Panel referred to Cameron v Cole (1944) 68 CLR 571 at 589. There Rich J stated that: It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside (Craig v. Kanssen). [footnotes omitted]
We have set out at length the course the Member adopted to hear and determine the respondent's application. He did not identify the evidence that was being relied upon. He did not enquire whether Ms Fuller objected to Mr Mitchell's statement in part or in whole. He did not invite or ask her whether she wished to cross-examine Mr Fuller. Although the Tribunal's procedures are intended to be flexible, and these are not procedures that must be adopted in every case, in our view, Ms Fuller should have been asked whether she objected to the statement, in whole or in part, and whether she wished to ask Mr Mitchell any questions.
We note that, as we understand the evidence, the statement of Mr Mitchell which supported the respondent's application was the same statement (dated 3 May 2018) which he relied on in the respondent's defence of the appellants' application. But this was never explained to Ms Fuller.
The failure to provide the appellants with a fair opportunity to know and meet the case brought against them was compounded by the Member's approach to the amendment of the respondent's application to add a claim for termination of the residential tenancy agreement in respect of the Manager's House on the ground of hardship pursuant to s 93 of the RT Act.
We have set out above the circumstances in which the Member permitted the amendment. No application to amend was ever made by the respondent. The Member effectively forced the amendment on the respondent in circumstances where: the respondent's representative did not apparently understand what he was being asked to agree to, the terms and effect of section 93 were not explained or disclosed to the appellants, the appellants' attitude to the amendment was not sought, and the Member would not listen to the appellants' McKenzie friend.
For these reasons, we consider that the Member failed to ensure that the appellants were afforded procedural fairness in relation to the respondent's application. This conclusion alone is sufficient for us to allow the appeal, set aside the orders made on the respondent's application (that is orders (1) to (6) and (8) to (12)) and remit the respondent's application to the Tribunal for re-determination.

Ground (3): application of the incorrect legislation

The Member stated, during the course of the hearing, that there was a "muddle" about which legislation applied, that the situation was "messy", and that the matters were "complicated by the involvement of at least [two] Acts": par [26] of the Decision. At pars [23] and [24] of the Decision, after setting out the relief sought, the Member stated that the relief in both applications was sought pursuant to the RT Act. However, he then states at [25]: Given the informality of the Tribunal, I will treat these applications as corresponding applications under the [Residential (Land Lease) Communities Act 2013 (NSW)] where that is necessary to make sense of the applications.
The Member's conclusions on this issue appear at [27] to [29] of the Decision: 27. It is undisputed that associated with the Occupants' employment there was an oral agreement for the Occupants to reside in the Manager's House from about 30/8/2017. The RTA is not excluded by s7 RTA. The RTA is expressly applied even to premises such as in the KTV: s8A RTA. Section 9 RTA has no application because of s9(3) RTA. 28. In principle, the RTA might be excluded by s8(1)(ba) RTA if it were covered by a site agreement under R(LL)CA. However, the R(LL)CA does not apply to accommodation in a community for a full-time employee of the operator or owner: s7(1)(c) R(LL)CA. 29. Accordingly, I am satisfied that there was an oral agreement between the parties concerning the Manager's House, which constituted a residential tenancy agreement under the RTA. To the extent necessary, I declare that this oral agreement was a residential tenancy agreement under s11 of the RTA.
The respondent owns and operates the Kempsey Tourist Village. The Village offers air-conditioned ensuite cabins, onsite caravans, drive-thru ensuite sites, powered and unpowered sites for rental. As noted, the two proceedings involved three properties within the Village, the Manager's House, and sites VE-35 and VE-36 on each of which was situated a caravan.
In relation to the Manager's House, the Member concluded at [29] that there was an oral agreement between the parties which constituted a residential tenancy agreement under the RT Act.
As to sites VE-35 and VE-36, the Member stated at [33] that they were each sites under the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act). His reasoning is as follows: 33. Let me turn now to VE-35 and VE-36. I am satisfied that they are each sites under the R(LL)CA and there must be site agreements concerning them: s5-s8 R(LL)CA. 34. Accordingly, there can be no residential tenancy agreement covering these sites: s8(1)(ba) RTA. 35. To the extent necessary, I declare that agreements between the parties concerning sites VE-35 and VE-36 are agreements to which the R(LL)CA applies: s9 R(LL)CA.
We doubt that either of the statements that VE-35 and VE-36 are sites under the RLLC Act or that "there must be" site agreements concerning those sites is a correct statement of the law or a correct application of the law to the undisputed facts. The Member's declaration that the "agreements between the parties" are agreements to which the RLLC Act applies fell short of a finding that there were such agreements, and less still on what basis the agreements could be found.
The RLLC Act deals with the governance of residential communities, in particular the rights and obligations of operators of residential communities and home owners in residential communities: RLLC Act, s 3. Residential community is defined in s 4 as an area of land that comprises or includes sites on which homes are, or can be, placed, installed or erected for use as residences by individuals, being land that is occupied or made available for occupation by those individuals under an agreement or arrangement in the nature of a tenancy, and includes any common areas made available for use by those individuals under that agreement or arrangement.
A residential community may be:

a caravan park (that is, land, including a camping ground, on which caravans, or caravans and other moveable dwellings, have been, are or are to be placed, installed or erected), or
a manufactured home estate as defined in the Local Government Act 1993 (NSW) (that is, land on which manufactured homes have been, are or are to be placed), whether or not the caravan park or manufactured home estate is the subject of an approval under the Local Government Act 1993 (NSW) .

The RLLC Act explicitly provides (see s 13(1)) that it does not apply to a tenancy agreement, except as otherwise provided. A tenancy agreement is defined in s 4 as a residential tenancy agreement within the meaning of the RT Act. In summary, as we understand the RLLC Act, it is applicable to agreements for the lease or licence of sites upon which the tenant (or homeowner as they are referred to in the RLLC Act) erects or installs their own caravan, moveable dwelling or manufactured home. The Member, in concluding that s 8(1)(ba) of the RT Act prevented there being a residential tenancy agreement concerning VE-35 and VE-36, has failed to recognise that an agreement by which a person is permitted to occupy, as a residence, a caravan, moveable dwelling or manufactured home which they do not own or intend to acquire, is not a site agreement under the RLLC Act.
In any event, as we understand what is reflected in the sound recording, each of the parties, and specifically Mr Mitchell on behalf the respondent, agreed that the tenancy agreement in respect of VE-36 was terminated by consent at the time the appellants moved into the Manager's House.
If the tenancy agreement had been terminated then a question must have arisen on what basis the appellants were utilising the caravans for storage. The respondent argued, and the Member apparently accepted, that the appellants had agreed to pay a weekly fee but, if the agreement pursuant to which that fee was payable was not a tenancy agreement under the RT Act, which it would not be if the vans were not let for the purpose of use as a residence (RT Act, s 13(1)), and not a site agreement under the RLLC Act, the Tribunal had no jurisdiction to enforce that agreement.
We consider that there is substance in Ground (3), namely that the Member applied the incorrect legislation. The difficulties to which that conclusion gives rise are exacerbated by the Member's failure to undertake any analysis of the evidence before him, or to seek submissions from the parties, to allow a proper determination, founded upon the evidence, of which Act, if either, did apply, or to address the question whether the Tribunal had jurisdiction to enforce any agreement with respect to the appellants' occupation of the vans.

Inadequate reasons

In Prendergast at [12] the Appeal Panel referred to the difficulties facing unrepresented litigants in trying to establish an error of law. The Appeal Panel stated that, in circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. We take this guidance to extend to examining the reasons for decision and the conduct of the hearing. The Appeal Panel may recognise irregularities unnoticed by an unrepresented litigant, in this case, inadequate reasoning.
As the Court of Appeal commented In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110: 1. the giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: see [57] and the cases there referred to; 2. the extent and content of reasons will depend upon the particular case under consideration and the matters in issue: see [58] and the cases there referred to; 3. while a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties: see [58] and the cases there referred to; 4. the reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments have been understood and accepted: see [59] and the cases there referred to.
We consider that the Member's reasons for determining that the appellants were liable to the respondent for rent or "site fees" in respect of their utilisation of the vans were inadequate.
The Member failed to address in any way the significance of Mr Mitchell's concession that the tenancy agreement in respect of VE-36 was terminated when the appellants moved into the Manager's House. The Member failed to give any consideration to the characterisation of any agreement which might have come into existence concerning the utilisation by the appellants of VE-35. The appellants had never lived in VE-35 and had at all times used that van solely for storage.
The position might have altered when the parties agreed, as the Member found had occurred on 8 March 2018 that the appellants would pay one combined amount of $300.00 per week for all three properties. Possibly, a residential tenancy agreement covering all three properties (with the appellants' rights of occupation of the vans being ancillary to their right of occupation of the Manager's House) might have come into existence at that time, but the Member did not address that possibility and made orders inconsistent with it.
The Member ordered the appellants to pay $6,144.00 in respect of occupation fees for VE-35 and VE-36 up to 8 March 2018. Both by reason of the errors of law identified above and also by reason of the inadequacy of the Member's reasons for making that order, it should be set aside.
The Member also made orders relating to the termination of the "site agreements" in respect of VE-35 and VE-36. For the same reasons, those orders, numbered (9) to (12) inclusive, should also be set aside.

Ground (2)

The appellants submit that the Member failed to give adequate weight to any evidence that he allowed Ms Fuller to give or evidence that had been submitted in the appellants' application. We accept this submission. There is no reference anywhere in the Decision to the evidence of the appellants which was before the Member. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, the process of fact finding miscarries: Pollard at [66] and the cases there referred to.
If necessary we would grant leave and uphold the appeal in respect of this ground. Although cl 12(2)(b) of Sch 4 to the NCAT Act precludes the grant of leave to appeal against an order of the Tribunal for the termination of a tenancy under the RT Act (which would include orders (1) to (4) in these proceedings) that provision is only applicable where "a warrant of possession has been executed in relation to" the order the subject of the appeal. It has not been suggested that a warrant of possession has been executed in respect of the appellants' occupation of the Manager's House. We understand that the appellants vacated without compulsion (albeit under the threat of compulsion arising from the orders of 28 June 2018).
We note that the fact that the orders made on the respondent's application have been set aside will not have the result that the appellants are entitled to re-enter into occupation of the Manager's House. The appellants were under notice to vacate at the end of July 2018 and we do not understand that they contested the proposition that their tenancy would have terminated at that time.

Extension of time

We referred above to the need for an appeal to have been brought within the time laid down in the legislation.
Rule 23(3)(b) of the Civil and Administrative Rules 2014 provides that, for appeals of this nature (that is, "residential proceedings" as defined in rule 3), the Notice of Appeal must be filed within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later).
The Notice of Appeal was filed on 25 July 2018.
The Tribunal decision was given orally on 28 June 2018 and Ms Fuller was present. She states on the Notice of Appeal that the date on which she received notice of the decision was 4 June 2018. Presumably this is an error, and should have read 4 July 2018. Assuming this was the date on which Ms Fuller received a copy of the written reasons for decision, the appeal should have been lodged by 18 July at the latest, and was filed 7 days' late.
Given the way the Member conducted the hearing, reading his reasons to the parties as he typed them into his laptop, it might be argued that the Member gave his reasons for decision orally on the day of the hearing. If a party is given oral reasons for decision, the time to appeal commences from the date those reasons are given: Taylor v Peslak [2018] NSWCATAP 57 at [45]. On that basis, the appeal should have been filed by 12 July 2018, and was filed 13 days late.
In either event, the appellants require an extension of time for the filing of their appeal. Section 41 of the NCAT Act provides that we may grant such an extension of time if we consider it appropriate.
The appellants state that the Notice of Appeal was lodged out of time as they were waiting on assistance from Legal Aid NSW, complicated by working part-time and having to relocate.
The application for the extension of time is opposed by the respondent. In its Reply to Appeal the respondent states that the appellants had the information required for the "court hearing", that they are "just unhappy" with the outcome, and are using "all tactics" to have the Decision overturned. The respondent states that the appellants' reasons are "false".
We see no substance in the respondent's submission, and note that the respondent does not claim it would be prejudiced by the grant of an extension of time. As we have identified errors of law in the decision and the extension sought (whether it be 7 or 13 days) is not lengthy, we consider that the justice of the case requires that we extend the time for the filing of the Notice of Appeal to 25 July 2018.

Orders 1. Extend the time for the filing of the Notice of Appeal to 25 July 2018. 2. Appeal allowed. 3. Orders numbered (1), (2), (3), (4), (5), (8), (9), (10), (11) and (12) made on 28 June 2018 in matter RT 18/25065 are set aside. 4. Remit matter RT 18/25065 to the Consumer and Commercial Division of the Tribunal, differently constituted, for re-determination. The matter is to be listed for directions for decision as to which issues need to be re-determined.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2018

Residential Tenancies Act 2013(NSW)

(Land Lease) Communities Act 2013(NSW)

Appeals as of right on questions of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. The Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. The questions of law identified by the Tribunal at [13] include:

whether there has been a failure to provide proper reasons: at [13(1)];
whether a wrong principle of law had been applied: at [13(3)];
whether there was a failure to afford procedural fairness: at [13(4)].

Appeals with leave

Clause 12(1) of Sch 4 of the NCAT Act states that an Appeal Panel may grant leave to appeal only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
Ordinarily it is appropriate to grant leave to appeal only in matters that involve an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result: Collins v Urban [2014] NSWCATAP 17 at [84].
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice, the Appeal Panel retains the discretion whether to grant leave under s 80(2) of the NCAT Act: Pholi v Wearne [2014] NSWCATAP 78 at [31].

The Grounds of Appeal

The appellants' grounds of appeal are stated as follows. For convenience, we have added spacing and paragraph numbers: [1] The hearing was procedurally unfair as we (Ellen & Kevin) were unaware of any counterclaim until told by the member. I (Ellen) notified the member of this and he refused to allow me (Ellen) a copy of the counter claim and also refused to allow me (Ellen) to gather or provide any evidence towards the claim and proceeded with the hearing. [2] The member also failed to give adequate weight to any evidence or comments, he would allow me to use or that had been submitted in our (Ellen & Kevin) original claim. He also gave too much weight to the evidence provided by the owner Mark Mitchell. [3] The member made orders under the wrong legislation, orders were made under the [Residential (Land Lease) Communities Act 2013]. These orders should have been under the [Residential Tenancies Act]. We (Ellen & Kevin) previously had a tenancy agreement under the [Residential Tenancies Act] for caravan Ve36 that was terminated by the offer of employment in the park.
Ground (1), directed to the Member's conduct of the "counterclaim", that is the respondent's application, RT 18/25065, raises an error of law, namely the failure of the Tribunal to afford the appellants procedural fairness: Prendergast at [13(4)]; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8].
Ground (3) also raises an error of law, that is, whether a wrong principle of law had been applied: Prendergast at [13(3)].
Accordingly, leave is not required in respect of these grounds and the appeal may proceed as of right, subject to the appeal having been brought in time. We shall deal with this point below.
Ground (2) which relates to the weight accorded by the Member to the parties' evidence is clearly a ground requiring leave.
Given the matters we consider below, it is appropriate to set out the background to the Decision, and to outline relevant parts of the course of the hearing as conducted by the Member.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (8)